JUDGMENT By the Court.—This criminal appeal under Section 374 Cr.P.C. has been filed by Shiv Lal, Jai Ram, Chhote Lal, Gyanendra Singh and Jeetendra Singh against the judgement and order of the VIIth Additional District and Sessions Judge, Fatehpur dated 14th June, 1994 passed in Sessions Trial No. 648 of 1991. The appellants have been convicted for the offences under Section 302/149 and 201 I.P.C. For the offence under Section 302/149 I.P.C. they have been sentenced to undergo imprisonment for life. For the offence under Section 201 I.P.C. they have been sentenced to undergo rigorous imprisonment for three years. Both the sentences are to run concurrently. 2. The prosecution story as reflected from the records is as follows : On 11.11.1987 at 10.00 a.m. a First Information Report was lodged at police station-Chandpur, district-Fatehpur by one Munna Lal, wherein it was stated that in the night intervening 10th November, 1987 and 11th November, 1987 his son Shiv Sahai alongwith his brother Shiv Shankar had gone to the bed at roof (Atari) of the residential house. Shiv Sahai, however, informed Shiv Shankar that he was feeling cold and therefore moved to a room for sleeping. At around 7.00 a.m. in the morning when the informant went to the room, where Shiv Sahai had gone to sleep, he found the door of the room locked. No information could be given by any of the residents of the house about Shiv Sahai. The informant in belief that the son has gone for daily necessities waited for some time for his son to return. But since the son did not return for some time, he went towards Khalihan. Under a Pipal tree he found the Lungi of his son. When he reached the place near the fence of Besharma, he saw the dead body of his son. The face of the son was covered with the towel with the help of rope. 3. On the registration of the First Information Report, S.I. Omkar Nath Sngh visited the spot. Panchayatnama was prepared and after preparation of other documents, the dead body was sent for post-mortem. The post-mortem on the dead body was performed on 12th November, 1987 at 3.00 p.m. by Dr. G.C. Sethi. 3. On the registration of the First Information Report, S.I. Omkar Nath Sngh visited the spot. Panchayatnama was prepared and after preparation of other documents, the dead body was sent for post-mortem. The post-mortem on the dead body was performed on 12th November, 1987 at 3.00 p.m. by Dr. G.C. Sethi. The investigation of the case was done between 11.11.1987 to 12.1.1988 by the S.I. Omkar Nath Singh, between 13.1.1988 to 23.10.1988 the investigation was done by one Siraj Ahmad, between 24th October, 1988 to 5th April, 1989 the investigation was done by Radhe Shyam Trivedi, and finally from 05th April, 1989 till the date of submission of the charge-sheet i.e. on 8.9.1990 the investigation was done by S.I. Lokendra Singh. 4. The ante-mortem injuries, as reported in the post-mortem report on the body of Shiv Sahai, were as follows: Antimartum Injuries 1. Ligature mark (un interrupted all around neck 36 cm. x 1.5 cm. in measurement 4.5 cm. below right external ear, 4 cm. below left external ear and 3 cm. from chin. 2. Abbarasion 1 cm x 1 cm. on left side of neck, 4 cm. below left angle of mandible. 3. Abbarated contusion 10 cm. x 6 cm. on the right upper arm 6 cm. below right shoulder. 4. Contused swelling 15 cm. x 8 cm. on the interior part of head in the middle. Internal Examination Brain- Congested. Trachea-deeply Congested. Hyoid bone-intact. Both lungs-Congested. Teeths-14/14 Stomack-Empty Mucous Membrances-Blightly Congested. Small intestine-half full with gasses. Lever-congested. Spleed & Both Kidney-congested. Bladder-Empty Large intestine-Gasses & faecal present. esjh jk; esa mijksDr dh e`R;q yxHkx Ms< fnu igyh Strangulation ds dkj.k gq, asphyxizz ds dkj.k FkhA ;g fjiksVZ esjs gkFk dh fy[kh ,oa nLr[krh gSA bls ekSds ij rS;kj dh FkhA bl ij izn'kZ d&3 Mkyk x;kA iksLVekVZe ds le; eq>s X;kjg nLrkost izkIr gq, FksA bu ij eSus gLrk{kj fd, vkSj bUgsa fjiksVZ ds lkFk dkaLVscy dks ns fn;k FkkA e`rd ds 'kjhj ls ,d Underwear izkIr gqvkA mldks ekSds ij lhy djds Constable dks Handover dj fn;kA e`rd dh e`R;q fnukad 10@11-11-87 ds jkr ds yxHkx 12 cts dh gks ldrh gSA ,UVhekVZe bUtjht ua0 1 xys ds pkjks rjQ ls fdlh pht dks cka/kdj dlus ls vkuk laHko gSAß In the opinion of the doctor the cause of death was due to strangulation. From the testimony of the first Investigating Officer (page 53 of the paper book) none of the witnesses had disclosed any apprehension about involvement of the accused in the offence i.e. up to 12.1.1988 to him. 5. Similarly, we find that there is no material on record to establish that the second Investigating Officer Siraj Ahmad had collected any information with regard to the involvement of the accused in the murder of the deceased Shiv Sahai i.e. upto 23.10.1988. 6. Extra Judicial Confession is stated to have been made by all the five accused before one Chhote Lal, said to be of the same caste to which the deceased belonged. It is with the help of this extra judicial confession that the last Investigating Officer found that the accused were involved in the murder of Shiv Sahai and accordingly he submitted the charge-sheet. 7. The prosecution in support of its case examined Munna Lal informant and the father of the ceased as P.W.-1. Smt. Shukla Devi, wife of brother of the informant, was examined as P.W.-2. Shiv Shankar, the brother of the deceased, was examined as P.W.-3. Rajjak Khan, who is stated to have seen the accused carrying the dead body of Shiv Sahai, was examined as P.W.-4, however, subsequently he was declared hostile. Chhote Lal, the uncle of the deceased, was examined as P.W.-5. Dr. G.C. Sethi, who performed the Autopsy on the dead body of the deceased Shiv Sahai, was examined as P.W.-6. U.N. Singh, IInd Additional Chief Judicial Magistrate, Fatehpur, who is stated to have recorded the statement of Rajjak Khan under Section 164 Cr.P.C., was examined as P.W.-7. Radhey Shyam Trivedi, the third I.O., was examined as P.W.-8. Lokendra Singh, Inspector C.B.C.I.D., the fourth Investigating Officer, was examined as P.W.-9. Constable Khushi Ram, who had prepared the Chik F.I.R. and had made entry in the G.D., was examined as P.W.-10. S.I. Omkar Nath Singh, the first I.O., who also prepared the inquest report, was examined as P.W.-11. The accused in their testimony under Section 313 Cr.P.C. denied the charges and prayed for trial. Constable Khushi Ram, who had prepared the Chik F.I.R. and had made entry in the G.D., was examined as P.W.-10. S.I. Omkar Nath Singh, the first I.O., who also prepared the inquest report, was examined as P.W.-11. The accused in their testimony under Section 313 Cr.P.C. denied the charges and prayed for trial. The trial Court, after examining the material evidence brought on record and after considering the extra judicial confession of the accused before Chhote Lal, went on to hold that they are the persons who have committed the murder of Shiv Sahai and accordingly convicted them for the offence under Section 302 IPC read with 149 IPC and under Section 201 IPC. Accordingly, sentenced them as noticed above. 8. Challenging the order so passed by the trial Court, Sri Rajul Bhargawa, Advocate on behalf of the appellants submitted that the informant, father of the deceased Shiv Sahai, in his First Information Report lodged on 11.11.1987 has not disclosed any motive or any apprehension qua the appellants having committed any offence upon the son of the informant. 9. From the records it is established that his statement was recorded by the Investigating Officer for the first time on 12.11.1987. His statement he did not give any indication of any apprehension at the hands of accused qua the death of his son. He submits that in order to lend colour to the theory of the prosecution, allegation of motive were made in the statement of P.W.-1, P.W.-2 and P.W.-3 qua the involvement of the deceased with the sister of accused Shiv Lal. He further submits that the Investigation Officer Radhey Shyam Trivedi in his testimony as P.W.-8 had referred to the statement of Goli, the sister of Shiv Lal qua her being involved with Shiv Sahai, but Goli was never produced in evidence and therefore her testimony recorded under Section 164 could not have been taken into consideration by the trial Court for the purposes of convicting the appellants. 10. He further submitted that the statement made by P.W.-5 qua extra judicial confession having been made by all the five accused on 21.1.1989 before him does not inspire confidence. 10. He further submitted that the statement made by P.W.-5 qua extra judicial confession having been made by all the five accused on 21.1.1989 before him does not inspire confidence. He submits that admittedly the accused were Thakur by caste, while the respondent No. 5 was Garariya (Pal) by caste and further that there is no reason as to why all the five accused assembled on a particular date and time before P.W.-5 and made the extra judicial confession and simultaneously prayed for pardon, when P.W.-5 was not the first informant. Moreover, the first informant, the father of the deceased, had stated in his testimony as P.W.-1 that at the time such extra judicial confession was made he was also present. 11. Counsel for the appellants points out that extra judicial confession is a weak piece of evidence. Before it can be made the basis for conviction, the circumstances under which it is made, the manner in which it is made and the person before whom it was made must be considered alongwith the two rules of caution, namely, whether the evidence of confession is reliable and second whether it finds corroboration. 12. Sri Rajul Bhargawa submits that in the facts of the case there is absolutely no evidence to corroborate the story as stated to have been disclosed in the extra judicial confession. On the contrary he points out that while in the extra judicial confession it is alleged that the accused had strangulated the deceased after putting cloth on his mouth and by putting pressure on the neck of the deceased, the post-mortem report discloses uniform ligature marks all around the neck, which could only be occur by putting a rope all around the neck and pulling it on both the sides. He, therefore, submits that the medical evidence does not corroborate the extra judicial confession said to have been made by the accused. 13. He lastly points out that the extra judicial confession is said to have been made after more than one year and two months of the alleged incident, which is highly improbable. He, therefore, submits that in the facts of the case the judgment of the trial Court, which is based upon the extra judicial confession only, cannot be legally sustained. 14. The learned A.G.A. disputes the correctness of the stand so taken by the counsel for the appellants. He, therefore, submits that in the facts of the case the judgment of the trial Court, which is based upon the extra judicial confession only, cannot be legally sustained. 14. The learned A.G.A. disputes the correctness of the stand so taken by the counsel for the appellants. It is contended that from the site where the dead body was recovered a rope of Sutli/San was also recovered. Therefore, in all likelihood the rope of Sutli/San was used to strangulate Shiv Sahai by the accused. It is also submitted that the extra judicial confession made by the accused was before the uncle of the deceased, the purpose being to seek pardon for the offence committed by them. He also explains that the motive, for Shiv Sahai being done to death is also established from the prosecution evidence, namely, the involvement of the deceased with the sister of one of the accused i.e. Shiv Lal. 15. It is submitted that the statement of Rajjak, who had subsequently turned hostile, was recorded under Section 164 in the presence of the judicial Magistrate and he had disclosed that he had seen the accused carrying the dead body of Shiv Sahai. The prosecution has, therefore, been able to establish the charge with certainty and this Court may not interfere. 16. We have hearing learned counsel for the parties and have examined the records. Before adverting to the merit of the case it may be recorded that Gyanendra Singh appellant No. 4 had expired during the pendency of the appeal. Therefore, an order has already been passed by the Court abating his appeal. 17. We further find that Gyanendra Singh is the person who is stated to have written the First Information Report on the asking of the informant Munna Lal. From the detail of the investigation as done in respect of the said case crime number, we find that up to the stage the investigation was done by second I.O. Siraj Ahmad, there was no evidence/information with the Investigating Officer qua the involvement of the accused in the alleged offence and the statement of the first I.O. as P.W.-11 is categorical in that regard. 18. It is only on the extra judicial confession made by the appellants before Chhote Lal, the uncle of the deceased, on 21.1.1989 that the trial Court has proceeded to hold them guilty of the alleged offence. 18. It is only on the extra judicial confession made by the appellants before Chhote Lal, the uncle of the deceased, on 21.1.1989 that the trial Court has proceeded to hold them guilty of the alleged offence. It would be appropriate for this Court to reproduce the relevant part of the testimony of P.W.-5 and P.W.-1 with respect to the extra judicial confession. It would be appropriate for this Court to reproduce the relevant part of the testimony of P.W.-5 and P.W.-1 with respect to the extra judicial confession. P.W.-1 had stated as follows: Þatc eqyfteku us esjs HkkbZ o le/kh dks crk;k fd mUgksaus gR;k dh gS ml le; eSa Hkh FkkA ml le; eSa n;k'kadj NksVs yky FksA ;g ckr esajs ?kj ds }kj ij gq;h FkhA ;g ckr ?kVuk ds Ms< o"kZ ckn gq;h gSA fQj dgk fd ,d o"kZ ckn gq;h FkhAß Similarly, while P.W.-5 had stated as follows: Þ20 tuojh lu~ 1989 dks ikapks eqyfteku esjs njokts ij 2 cts fnu vk;s ml le; esjs ikl esjs fj'rsnkj n;k'kadj Hkh cSBs FksA ;g ckr geyksxksa ls ftrsUnz mQZ iIiw us dgk fd f'ko lgk; dh dry geyksxksa ikapks fey djdh FkhA f'ko lgk; ftUnk ugha gks ldrk tks dqN gksuk Fkk gks x;kA ftrsUnz us ;g Hkh crk;k fd f'ko lgk; f'ko yky dh cgu dk ihNk ugha NksM jgk Fkk D;ksafd nksuksa dk uktk;t laca/k f'ko lgk; ls FkkA gR;k o laca/k okyh ckr dk leFkZu esa mifLFkr pkjksa us fd;k] t;jke] NksVs yky] KkusUnz] f'ko yky us fd;kA ftrsUnz us crk;k fd ge lcus ?kVuk okyh ckr jkr dks 12 cts jkr f'ko lgk; dh gR;k dh FkhA f'ko lgk; ds dejs ls ikapks vfHk;qDrksa us iqdkj dj cqyk;kA f'ko lgk; ckgj fudyk rks mls ikapks us ncksp dj f'ko yky ds ¼dk0QVk½ f'ko yky ds edku ykdj mlds eqag esa diMk Bwl ¼dk0QVk½ mldk xyk nck fn;k o f'ko lgk; ¼dk0QVk½ ekj MkykA fQj f'ko yky dh Hkwlk okyh dksBjh ¼dk0QVk½ Hkwlk esa yk'k dks nck fn;kA eqyftekuksa crk;k fd lqcg rhu cts ge ikapks vknfe;ksa us xkao ds ckgj yk'k dks cslje esa Qsad vk;s FksA eqyfteku us ;s Hkh crk;k fd f'ko yky Hkkxrs&2 ijs'kku gks x;k] tc og idMk tk;sxk rks ge lHkh idMs tk;saxsA eq>ls gkFk tksM jgs Fks ekWQh ekax jgs FksA ftrsUnz dh mijksDr ckrksa dk leFkZu esjs fj'rsnkj n;k'kadj ds lkeus fd;k FkkA esjs fj'rsnkj n;k'kadj us Hkh bu ikapks eqyfteku ls iwaNk Fkk rks lHkh yksxksa us n;k'kadj ls mijksDr ckrsa crk nh FkhAÞ From the reading of the aforesaid two statements, we find that the father of the deceased was present at the time the said extra judicial confession was made and he was the informant of the First Information Report. There was little or no reason for the accused to have prayed for pardon from Chhote Lal P.W.-5. We further find that while in the extra judicial confession as recorded above, it is stated that the accused had put a cloth on the mouth of the deceased and thereafter killed him by pressing his neck with hands but from the post-mortem report it is apparent that there were even ligature marks uninterrupted all around the neck. If the extra judicial confession is taken to be correct, then it is not corroborated by the medical evidence. 19. Although the Additional Government Advocate tried to suggest that there was a recovery of rope (Sutli) made out of San, but this rope was only used for covering the face of the dead body with the towel, as would be clear from the testimony of P.W.-11 S.I. Omkar Nath Singh. The relevant portion whereof reads as follows: ÞekSds ij e`rd ds diMs] pIiy] psgjs o 'kjhj ij ik;s x;s Hkwlksa dk uewuk] jLlh dPph lu ftlls mldk psgjk cka/kk x;k Fkk bR;kfn dks dCts esa ysdj QnZ rS;kj fd;kAß It is, therefore, apparent that the rope (Sutli) made of from raw San was not used for strangulation of the deceased and it was not the case of the prosecution. We find that there is hardly any reason for all the five accused to have collected on 21.1.1989 at the residence of P.W.-5 at the same time and to have made the extra judicial confession, specifically for the reason that he was not the informant nor the father of the deceased nor had any position of strength in his own community. 20. The legal position with regard to the extra judicial confession has been summarized by the Apex Court in the case of S. Arul Raja v. State of Tamilnadu, (2010) 8 SCC 233 and in paragraph 55 it has been held as follows: “55. In view of the above case law, it is made clear that an extra-judicial confession is a weak piece of evidence. Though it can be made the basis of conviction, due care and caution must be exercised by the Courts to ascertain the truthfulness of the confession. Rules of caution must be applied before accepting an extra-judicial confession. In view of the above case law, it is made clear that an extra-judicial confession is a weak piece of evidence. Though it can be made the basis of conviction, due care and caution must be exercised by the Courts to ascertain the truthfulness of the confession. Rules of caution must be applied before accepting an extra-judicial confession. Before the Court proceeds to act on the basis of an extra-judicial confession, the circumstances under which it is made, the manner in which it is made and the persons to whom it is made must be considered alongwith the two rules of caution:” 21. It may be recorded that no reason has come for the accused to have gone to the residence of Chhote Lal P.W.l-5 to confess their crime. The witness P.W.-5 was not closely acquainted with the accused nor had any status in the society so that he could help them. 22. Judged in the aforesaid legal background, we find that the manner in which the extra-judicial confession is said to have been made, the person before whom such confession is alleged to have been made, both appear to be highly doubtful. The extra-judicial confession alleged to have been made by the accused, is not corroborated with any evidence whatsoever on record and therefore the extra-judicial confession, which is a weak piece of the evidence only, could not have been the basis in the facts of the case for conviction of the accused. 23. We further find that although the statement of P.W.-4 Rajjak Khan was recorded in the presence of the Magistrate under Section 164 Cr.P.C. but said Rajjak Khan P.W.-4 specifically denied having seen the accused carrying the dead body of Shiv Sahai. As a matter of fact in his statement he disclosed that on the fate full day he was in the house and not at the tube-well. He also denied having made such statement as was recorded under Section 164 Cr.P.C. He specifically denied that the statement recorded under Section 164 Cr.P.C. has been given by him out of his own free will. In view of the statement of Rajjak Khan, the statement recorded under Section 164 Cr.P.C. could not have been relied for recording a finding qua involvement of the accused in the alleged offence. 24. In view of the statement of Rajjak Khan, the statement recorded under Section 164 Cr.P.C. could not have been relied for recording a finding qua involvement of the accused in the alleged offence. 24. Similarly, we find that although the Investigating Officer had referred to the statement of Goli, the sister of Shiv Lal qua her involvement with deceased Shiv Sahai and therefore to suggest the motive for causing death to Shiv Sahai, but Goli was not produced in evidence. Any statement of Goli recorded under Section 164 Cr.P.C. therefore could not be relied for bringing home the charge. In view of the what has been recorded above, we find that the trial Court has committed an error in holding the appellants guilty. The judgment and order of the trial Court dated 14.6.1994 cannot be legally sustained and is hereby quashed. The appellants are on bail, their bail bond be discharged. The appeal is allowed. —————